## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Gennell C. , 2012 IL App (4th) 110021

Appellate Court Caption In re: GENNELL C., a Minor, THE PEOP L E OF THE STATE OF I L L I NOI S, Pe ti ti o n er
- A

p p e ll e e , v

. G EN

N E LL C. , Re s p o ndent-Appe llant.

District & N o. Four th District Docke t No. 4-11-0021

Filed May 3, 2012

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) Where the trial court acc epted responde nt’s admission to theft over $300 and dismissed other cha

rg es bef ore a djudicatingher a delinquent minor and sentenc ing her to an indetermi n at e term in the Depa rtment of J uvenile Justice that would terminate in five year s or on her twenty-first birthday , whicheve r came first, the trial court’s denial of her motion to
rec onsider her sentenc e and impose a communi t y -b ased sentenc e was aff irmed, since responde nt never asked f or a revie w of her commitment based on new evidence an d a reque st for a chang e in custody under section 5-745(3) of the J uvenile Court A ct is not implicit in a reque st to
rec onsider a se ntence

.

Dec ision Under Review Appea l from the Circuit Court of Champaign County , No. 10-JD-196; the Hon. Har ry E. Clem, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er, Kar en Munoz, and Catherine K. Har t, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ulia Ri etz, State’s Attorney , of Urba na (Patrick Delfino, Robert J

. Bide rman, and Aimee Sipes Johnson, a ll of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES IDI NG J USTI CE TURNER delivere d t h e j udgment of the court, with opinion. J ustices Pope and Kne cht conc urre d in the judgme nt and opinion.

OP INION

¶ 1 In September 2010, the State filed a petition fo r ad j u d i ca t i o n of war dship, alleg ing
re s p ondent, Genne ll C. (born in Marc h 1996), was a delinquent minor beca us e s h e committed residential burg lary (720 I L CS 5/19-3(a) (West 2008)). That same m o nth, the State filed a supplemental petition, asser ting responde n t committed theft over $300 (720 I L CS 5 / 1 6 -1 (a)(1)( A), (b)( 4) (West Supp. 2009)). In September 2010, pursuant to a plea agree ment, responde nt admitted committ i n g t h ef t over $300, and the court dismiss ed the
re s idential-burg lary count and petitions ag ainst responde nt in other case s. The trial cou rt
acc epted respondent’s admission and adjudicated respondent a delinquent m inor. After an October 2010 disp o s i t i o n al hearing, the court made responde nt a war d of the court and sentenc ed her to an indeterminate term in the Depa rtment o f J u v en i l e J ustice (DOJJ ) that would automatically terminate in five year s or upon respondent’s twenty-first birthday , whicheve r came first. Respondent filed a motion to rec onsider her sentenc e, which the court denied. ¶ 2 Respondent appea ls, c laiming the trial court err ed by denying he r motion to reconsider her se ntence . We affir

m.
¶ 3 I . BA CKGROUND ¶ 4 The State’s September 2010 adjudication petition and supplemental petition in this case
wer e based on responde nt’s action s on August 23, 2010. At the time of the adjudication petition’s filing, responde nt had another petition for adjudication of war dship pending

. In re Genne ll C., No. 10-JD-187 (Cir. Ct. Champaign Co.). The State later filed two petitions for indirect c riminal contempt of cour t ag ainst responde nt based on her failure to a bide by the conditions of her r elea se fr om custody (Nos. 10-MR-659, 10- MR-727). ¶ 5 On September 24, 2010, pursuant to a plea agree ment, responde nt admitted committing

-2-theft over $300, and the State moved to dismiss the other war dshi p p et i t ion, the indirectcriminal-c ontempt pe tition in case No. 10-MR-659 and agree d not to file charg es based on Rantoul police repor

t No. 1 0 -6134. The trial court acc epted responde nt’s admission and adjudicate d her a

delinquent minor. ¶ 6 At the October 27, 2010, dispositi onal hearing , the trial court made respondent a war d of the court, committed her to DOJJ for an indeterminate term not to exceed five year s or her twenty -first b i rt h day , and appointed DOJJ ’s Director as responde nt’s leg al custodi an. The court set the revie w of the commitment order for Marc h 23, 2011, and require d DOJJ to file

a written repor

t of its examination of responde nt by Marc h 10, 2011. At the State’s reque st, the cour t also dismis sed the last pendingcontempt petition in case N o. 10-MR-727. ¶ 7 On November 18, 2010, responde nt filed a motion to rec onsider her sentenc e, asse rting (1) her sentenc e was excessive; (2) the trial court err ed by considering she had been charg ed with a more serious offe nse; (3) the court err ed by considering her prior police contac ts; (4) her sentenc e did not keep with her criminal history , family situation, and economic status for many enumer ated rea sons; and (5) her sentenc e did not keep with the alternatives available to the court to assist responde nt with her rehabilitation. The prayer for relief requested the court “re consider the Respondent Minor’s sentenc e and enter a community -base d sentenc e.” The motion only addre ssed matters befor e t h e co u rt at sentenc ing and did not prese nt any new e vidence

. ¶ 8 On Dec ember 21, 2010, the trial court held a hearin g o n re s p o n d en t ’s m o t i o n t o rec onsider her sentenc e. Respondent’s counsel beg an her argument by stating the following : “And in support of our motion we’ re asking that the Court rec on s i d er its sentenc e and sentenc e [r espondent] to a community -base d sentenc e.” Counsel noted responde nt had no prior adjudications, her offe nse was nonviolent, responde nt showed a desire to work with the Champaign County Mental Health Center, and res p o n d ent’s mental-health and substanceabuse i s sues could be best addre ssed in the community

. Counsel ag ain asked the court to
rec onsider res pondent’s sentenc e and sentenc e her to a community -base d sentenc e. Respondent’s counsel then sta te d th e following : “Additionally , your Honor, [respondent] did bring documents from the [DOJ J ] which show that she has g otten off to a g ood start, and she did want the Court to see them ***.” The State responde d the documents submitt ed that day
wer e positive but should be considere d at the Marc h hearing when responde nt’s commitment would be revie wed. The court denied the motion to rec onsider and rema nded responde nt to DOJJ to continue servingthe sentenc e pre viously imposed. ¶ 9 On J anuar

y 5, 2011, responde nt filed a t i m el y n o t i ce o f appea l from the trial court’ s dispositi onal order and d en i al o f responde nt’s motion to rec onsider in compliance with I llinois Supreme Court Rule 606 (eff. Mar. 20, 2009). S ee I ll. S. Ct. R. 660(a) (e ff. Oc t. 1, 2001) (providing the rules applicable to criminal case s g overn appea ls from final judgme nts i n delinquent-minor proce eding s, unless specific ally provided otherwise)

. Since t h e dispositi onal order i n a juvenile d el i n qu en cy proce eding is a final order ( In re Justin L.V. , 377 I ll. App. 3d 1073, 1079, 882 N.E.2d 621 , 6 2 6 (2007)) , we have jurisdiction over this appea l under I llinois Supreme Court Rule 660(a) (e ff. Oc t. 1, 2001).

-3-¶ 10 I I . ANALYSI S

¶ 11 Whil e re spondent labels her arg ument as one challeng ing the trial court’ s denial of he r motion to rec onsider her sentenc e, she actua lly asser ts the court err ed by denying her reque st for a chang e in h er sentenc e under section 5-745(3) of the Juvenile Court Act of 1987 (Juvenile Act) (705 I L CS 405/5-745(3) (West 2010)). The parties asser t the proper standard of revie w is the abuse- of-discr etion standard since responde nt is appealing the denial of her motion to rec onsider. See In re Jerm aine J. , 336 I ll. App. 3d 900, 902, 784 N.E.2d 428, 429 (2003). T h e ab u se-of

-discre tion standard also applies to a trial court’s selec tion of a dispositi o n

. S ee In r e S

eth S. , 396 I ll. App. 3d 260, 275, 917 N.E.2d 1182, 1194 (2009). Thus, if the court actua lly considere d a reque st for a chang e in custody , the abuse- ofdiscretion standard would apply to its d ec i s i o n o n the reque st. “A trial court abuses its discretion only wher e its ruling is arbitra ry , fanc iful, or unrea sonable, or wher e no rea sonable person would take the view adopted by the trial court.” In re A.W

. , 397 I ll. App. 3d 868, 873, 921 N.E.2d 1275, 1279 (2010). To the extent responde nt’s arg ument on appea l raises a question of law , our revie w is de novo

. See In re Samantha V. , 234 I ll. 2d 359, 369, 917 N.E.2d 487, 494 (2009)

. ¶ 12 Section 5-745(3) of the J uvenile Act (705 I L CS 405/5-745(3) (West 2010)) provides, in pertinent pa

rt, as follows: “The minor or any person interested in the minor may apply to the court for a chang e in custody of the minor and the appointment of a new custodian or guardia n of the person or for the restoration of the minor to the custody of his or her pare nts or former guardia n or custodian. *** No leg al custodian or guardia n of the person may be remove d without his or her co n s en t u n t il g iven notice and an opportunity to be hear d by the court.” (Emphasis adde d.) ¶ 13 As responde nt notes, this court has addre ssed section 5-745(3) of the J uvenile Act in the context of a revie w hearing. See Justin L.V. , 377 I ll. App. 3d at 1081, 882 N.E.2d at 628. In that case , we noted the following : “[S] ection 5-745(3) contains no require ment as to the form o r s ub s t ance of the application for a chang e in custody , nor does the section indicate what standard the trial court should apply i n d ec iding whether to grant such an application. When a court appoint s [DOJ J ] the guardia n of the minor following delinquency proce eding s, as the trial court did here , section 5-745(3) , there fore , contemplates that the minor o r any interested person may move th e co u rt to return guardia nship to his pare nts and,
nece ssarily , vacate [DOJ J ’s] guardia nship of the minor.” (Emphasis added.) Justin L.V. , 377 I ll. App. 3d at 1081, 882 N.E.2d at 628. ¶ 14 He re , the rec ord contains no evidenc e responde nt expressly moved or appl i ed fo r a chang e in custody in the trial court under section 5-745(3) of the J u v en i l e Act. In her November 201 0 p o s t sentenc ing motion, responde nt asked the trial court to rec onsider her sentenc e and g ive her a community -base d sentenc e. In her motion, responde nt only alleg ed
err ors t he court made in sentenc ing her to DOJJ and did not prese nt any new evidence

. At the Dec ember 2010 hearing on the postsentencing motion, respo n d en t ’s counsel ag ain indi ca t ed re spondent was asking the court to rec onsider its sentenc e and sentenc e her to a

-4-community -base d sentenc e. Counsel also ag ain rai s ed err ors in sentenc ing responde nt to

DOJJ

. After asking for rec onsideration, counsel simply noted responde nt wanted to make the court a war e of the DOJJ documents, which showed s he had g otten off to a g ood start. The prosec utor noted the documents wer e more appropriate for the Marc h 2011 revie w hearing. The court denied the motion to rec onsider, noting, inter alia , DOJJ had sent a “pre liminary repor t” indicating responde nt was rec eiving the service s she neede d and cooper ating with the eff orts of thos e t ry i n g to help her. The court noted it expected to see further positive information i n M ar ch 2011 and looked forwa rd to returning her to the community at that time. Acc ording ly , the rec ord shows responde nt was argu in g th e c o u rt (1) err ed by sentenc ing her to DOJJ and (2) should have orig inally sent en ce d h er to a community -base d sentenc e, not the court should conduct a revie w of its DOJJ commi t m ent based on new evidenc e as responde nt now sug g ests. ¶ 15 Respondent also appea rs to argue the reque st for a chang e in custody i s i nh er en t i na motion to rec onsider the sentenc e under the J uvenile Act. Even in a delinquency case , “[t] he purpose of a mot ion to rec onsider the sentenc e is not to conduct a new sentencing hearing but, rathe r, t o review t h e appropriateness of the s entenc e imposed and corr ect any err ors.” Jerm aine J. , 336 I ll. Ap p

. 3 d at 902-03, 784 N.E.2d at 430. Moreove r, the languag e of section 5-745(3) of the J uvenile Act (705 I L CS 405/5-745(3) (West 2010)) makes it clea r (1) the person seeking the chang e in custody must actively seek it by using the term “apply” and (2) the party that has custody of the mi nor must have the oppor tunity to be hea rd. See a lso Ju s t i n L.V. , 377 I ll. App. 3d at 1081, 882 N.E.2d at 628 (whe re the revie wing co u rt highlighted the fac t the responde nt’s counsel made an oral motion t o vacate the guardia nship). In Jerm aine J. , 336 I ll. App. 3d at 903, 784 N.E.2d at 430, the Third District reje cted a juvenile responde nt’s argument the trial court err ed by failing to order and consider

an up d ated social investigation repor t prior to ruling on his motion to withdraw an d reconsider because of the underlying philosophy in juvenile proceeding s. The cou rt fo u n d

a motion to re co n s i d er was not a new commitment hearing that require d a new social investigation report. Jerm aine J. , 336 I ll. App. 3d at 903, 784 N.E.2d at 430. In support of his argument, the responde nt had noted section 5-745 provided for periodic evaluations afte r the minor’s commitment. Jerm aine J. , 336 I ll. App. 3d at 902, 784 N.E.2d at 430. Thus, we disagree with responde nt a m o t i o n to rec onsider a sentenc e in a delinquency proce eding s includes a r equest for

a cha ng e in custody

under se ction 5-745(3) of the Juvenile Act. ¶ 16 Since responde nt did not reque st a ch an ge i n cu s t o dy under section 5-745(3) and a reque st for a chang e in custody is not implicit in a reque st to rec onsider the sentenc e, the trial court did not err

by ref using to re evaluate re spondent’s DOJJ commitment.

¶ 17 I I I . CONCLUSI ON ¶ 18 For

the re asons stated, we aff irm the Champaign County circ uit court’s judgment.

¶ 19 Affir

med.

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